1 Filed 8/5/14 P. v. Brown CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 1

THE PEOPLE, Plaintiff and Respondent,

v. ANDREW THOMAS BROWN, Defendant and Appellant. A139499
(San Mateo County Super. Ct. No. SC077982)

I NTRODUCTION A jury convicted defendant Andrew T homas Brown of two counts of second degree robbery (Pen. Code, § 212.5, subd. (c)); 1 two counts of assault with a deadly weapon (§ 245, subd. (a)); second degree burgla ry (§ 460, subd. (b)) ; and petty theft with priors (§ 666). On appeal, defendant conten ds the trial court prejudicially erred in admitting evidence of three prio r theft convictions not only fo r impeachment, but also to show intent to steal, and giving corresponding jury instructi ons allowing such use of the priors. The Attorney General concedes error in admitting two of the prior convictions for the purpose of proving intent , but maintains any error was harmless. We agree, and affirm the judgment.
B ACKGROUND On the evening of March 30, 2013, Freddie Persons and Omari Logan were working as loss prevention officers at a Safewa y supermarket in Daly City. They wore plain clothes and carried concealed badges.

1 All further statutory references are to the Penal Code unless otherwise indicated.2 According to prosecution witnesses, defe ndant entered the Sa feway at 8:14 p.m. and pushed his cart to the frozen meat sectio n. Persons testifie d he and Logan were alerted by the store manager that defendant was stuffing frozen meat into his overalls, and Persons, approaching defend ant to investigate, witnessed him stuffing one last steak
into his clothes. Under store policy, Persons and Logan had to wait until defendant left the store before they could confront him. A surve illance video showed defe ndant exiting the store at 8:19 p.m. with a bulge under his chest. Persons and Logan fo llowed defendant to a nearby parking lot, identified themselves as Safeway store security , and displayed their badges. Defendant, when he testified, adm itted Persons identified himself, but denied that he displayed a badge. Accordingl y, defendant claimed he thought the loss prevention officers were “young thugs” who intended to rob hi m. Persons told defendant he had to return to the store, and if he had stolen more than $100 worth of merchandise, they would have to call the po lice. According to Persons, defendant responded, “ ‘Yeah, I know.’ . . . “ ‘I know, I was hungry.’ ” After showing reluctance and saying he did not want to go back to jail, defendant pulled two packages of meat from his overalls. Persons testified that when he bent down to retrieve the meat, defendant pulled out a knife and swung it at the two loss prevention
officers. 2 Persons and Logan follo wed defendant as he walked away, but kept at a distance to avoid being cut by the knife. Pers ons then called 911 and can be heard on the 911 tape, played for the jury, describing the kn ife incident to the operator and later saying “ ‘Hold on, don’t go too soon, I don’t trus t him, that knife, I’m not about to get
stabbed.’ ” Defendant claime d he did not have a knife. Daly City Police Officer Ni cholas Ottoboni then arrived. Standing beside his police cruiser with his gun drawn, he ordere d defendant to stop. Defendant was taken into custody and searched. No knife was found on him, nor was one found along his path, covering about a mile, fro m Safeway to the site of a rrest. In a police interview

2 Logan thought the blade was a box cutter.3 taken in the station, defendant said he had promised to provide food for an Easter party he was to attend the following day but had no money to buy the food. Defendant, during the interview, admitted, “I went in the Safe way and I stole some meat.” He admitted the same thing at trial, saying “I went and stole some meat” a nd he had gone into the store for that specific purpose. The total value of the meat confiscated from defendant was between $160–$170. The San Mateo District Attorney charged defendant with two counts of robbery, two counts of assault with a deadly weapon , one count of second degree burglary, and one count of petty thef t with prior thefts. Before trial, the prosecutor filed a motion in limine to introd uce evidence of 11 prior convictions to impeach de fendant, should he testify, and to show intent to steal. After a hearing, the court allowed three of the priors—for felony second degree burglaries in 1998 and 2005, and felony theft with priors in 2010—for both purposes. At the close of evidence, the trial court instructed the jury, pursuant to CALCRIM No. 316, 3 it could consider the prior convictions in evaluating defendant’s credibility. The court also instructed the ju ry, pursuant to CALCRIM No. 375, 4 it could consider the convictions in determining whether defendant ha d an intent, plan, or scheme to steal. After less than a day of deliberations, the jury found defendant guilty of all charges. The trial court thereafter sentenced de fendant to an aggregate term of four years in prison. Defendant filed a timely notice of appeal and challenges only his convictions for robbery and assault.

3 The jury was inst ructed: “If you find that a w itness has been convicted of a felony, you may consider that fact [only] in evaluating the credib ility of the witness’s testimony. . . . It is up to you to decide th e weight of that fact and whether that fact makes the witness less believa ble.” (CALCRIM No. 316.)
4 The jury was instru cted: “In evaluating this eviden ce, consider the similarity or lack of similarity between th e uncharged [offenses] . . . and the charged offense[s]. [¶] Do not consider this evid ence for any other purpose exce pt for the limited purpose of [intent or plan or scheme to steal].”4 D ISCUSSION Defendant does not dispute that the prior convictions were properly admitted for impeachment. Rather, his sole contention on appeal is that the trial court erroneously
admitted the convictions as evid ence of intent to steal under Evidence Code section 1101 and gave correlating instructions allowing the jury to consid er the convictions for this

purpose. 5 The Attorney General largely concedes error on the ground the priors were not sufficiently similar to the charged offenses. 6 Thus, the issue on appeal is whether the admission of the prior thefts to prove intent , and the correlating instruction, constituted prejudicial error, requiring revers al, or was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 ( Watson ) [judgment reversed only when error is prejudicial].) Even without consideration of the priors , the “direct and circumstantial evidence against [defendant regarding his intent or pl an to steal and assault convictions] in this case was both virtually uncontra dicted and overwhelming.” ( People v. King (2010) 183 Cal.App.4th 1281, 1303; see also People v. Davis (2009) 46 Cal.4th 539, 603; People

v. Foster (2010) 50 Cal.4th 1301, 1335.) Defendant admitted to stealing the meat and to having that purpose when he entered the Safe way. He testified he wanted food for a picnic the following day, but did not have money to pay for it. He looked to see if anyone was watching while stu ffing the steaks into his overa lls and then walked out of the store without paying for them . In fact, he testified he knew it would be stealing if he
left the store “threshold” with the meat in his overalls. The testimony of the loss

5 “ Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act wh en relevant to prove some fact (such as . . . intent . . .) other than his or he r disposition to commit such an act.” ( Evid. Code, § 1101, subd. (b).)
6 The Attorney General contends one of the priors, the 2010 theft conviction, was similar and therefore properly ad mitted on intent. As defendant testified at trial, he stole cans of Red Bull from a Safeway in Half Moon Bay. We agree this prior was properly admitted as to intent, but note the instruction allowed its us e not only for intent, but also for plan and scheme to steal. In any case , there was no prejudice for the reasons we discuss above.5 prevention officers also estab lished defendant committed the crimes with which he was charged. Moreover, their testimony was corroborated by the 911 tape. Accordingly, allowing eviden ce of the three prior thef t convictions for purposes other than impeachment, and providing correlating jury in structions, was harmless,
whether assessed under the Watson standard ( Watson , supra , 46 Cal.2d at p. 836 [reversal required if it is reasonably pr obable defendant would have had a more favorable result absent the error]), or under the Chapman standard ( Chapman v. California (1967) 386 U.S. 18, 24 [reversal required unless error is ha rmless beyond a reasonable doubt]). There, likewise, was no infringement of defendant’s due process rights. (See People v.
Foster , supra , 50 Cal.4th at p. 1335 [given overwh elming evidence regarding defendant’s identity, “any error in the instru ction’s reference to the evid ence as relevant to prove defendant’s identity as the perp etrator would not constitute a violation of defendant’s due process rights, because the instruction di d not ‘infect[] the entire trial.’ ”].)
D ISPOSITION The judgment is affirmed.

_ ____________ ____________ Banke, J.

We concur:

_____________ ____________ Dondero, Acting P. J.

_____________ ____________ Becton, J. 

 Judge of the Contra Costa County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.